U.S. v. Kelly, 370
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | PER CURIAM |
| Citation | 45 F.3d 45 |
| Parties | UNITED STATES of America, Appellee, v. Michael KELLY, Defendant-Appellant. ocket 94-1176. |
| Docket Number | D,No. 370,370 |
| Decision Date | 17 January 1995 |
Page 45
v.
Michael KELLY, Defendant-Appellant.
Second Circuit.
Decided Jan. 17, 1995.
Page 46
Stephen P. Scaring, Garden City, NY (Laurie S. Hershey, of counsel), for defendant-appellant.
Susan Corkery, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. E.D.N.Y., Joseph R. Conway, Mark O. Wasserman, Asst. U.S. Attys., Brooklyn, NY, of counsel), for appellee.
Before: MINER, JACOBS, and PARKER, Circuit Judges.
PER CURIAM:
Defendant-appellant Michael Kelly appeals from a judgment entered on March 28, 1994 in the United States District Court for the Eastern District of New York (Wexler, J.), convicting him, following his plea of guilty, of conspiring to defraud the United States, in violation of 18 U.S.C. Sec. 371, and bank fraud, in violation of 18 U.S.C. Sec. 1344. Kelly was sentenced to a one-year term of imprisonment, to be followed by a three-year term of supervised release, and a $100 special assessment. While pleading guilty to counts one and nine of the second superseding indictment against him, Kelly reserved the right to appeal the district court's denial of his motion to dismiss the first nine counts of that indictment on speedy trial grounds. For the reasons that follow, we conclude that the district court erred in refusing to dismiss the first eight counts, and we remand for the district court to determine, in the first instance, whether these counts should be dismissed with or without prejudice. We affirm the district court's denial of Kelly's motion to dismiss as to the ninth count.
On December 3, 1991, a grand jury in the Eastern District of New York returned an eight-count indictment against defendant-appellant Michael Kelly, charging him with participating in conspiracies to defraud the United States Department of Housing and Urban Development and Comfed Savings Bank, a federally chartered and insured bank. On December 6th, Kelly was arraigned and entered a plea of not guilty on all eight counts. On March 30, 1992, a status conference was held and the court set a jury selection date of May 1, 1992, with the trial to commence at the end of May. The parties agree that only four days of speedy trial time had elapsed between December 3, 1991 and March 30, 1992, due to various waivers executed by Kelly.
On May 19, 1992, a superseding indictment was filed, realleging the previous eight counts (with minor technical changes) and adding an additional charge of bank fraud. On May 26th, Kelly was arraigned on the superseding indictment and entered a plea of not guilty, The following colloquy also occurred:
[GOVERNMENT]: We can go to trial on June 8th and pick a jury before that.
THE COURT: How can you?
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[GOVERNMENT]: We spoke this morning and apparently those dates will have to be put off and it's according to both counsel's schedules and the Court's schedule.
THE COURT: How about July?
[DEFENSE COUNSEL]: We seem to think that July is out of the question.
THE COURT: Why?
[DEFENSE COUNSEL]: Your Honor, as far as the defense goes, late July would be good from the 15th on, and apparently that is in conflict with the U.S. Attorney's schedule. We were shooting for very early August, if that is all right with the Court.
The court then set an August 7th trial date.
On June 30, 1992, a second superseding indictment was filed, re-alleging the first nine counts set forth in the first superseding indictment and setting forth two additional bank fraud counts. The next day, July 1, 1992, Kelly was arraigned on the second superseding indictment and entered a plea of not guilty.
On August 5, 1992, Kelly moved to dismiss counts one through nine of the second superseding indictment on speedy trial grounds, arguing that more than seventy days had passed since his arraignment on these counts. See 18 U.S.C....
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United States v. Sachakov, No. 11–CR–120.
...that a continuance was granted in order to further the ends of justice to create excludable time is not permitted. United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995). While the Supreme Court has noted that the Speedy Trial Act is ambiguous on precisely when those findings must be “se[t] f......
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U.S. v. Gaskin, No. 02-1070.
...v. Hillegas, 578 F.2d 453, 456 (2d Cir.1978); accord United States v. Breen, 243 F.3d 591, 594 (2d Cir.2001); United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995) (per curiam). Toward this goal, Congress enacted the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., which provides for dism......
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U.S. v. Shellef, No. 03–CR–0723 (JFB)(ETB).
...3161(h)(8)(A), it is axiomatic that retrospective exclusions under Section 3161(h)(8)(A) are not permissible. See United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995) (“[T]he district court's nunc pro tunc ‘ends of justice’ finding was ineffective to toll the speedy trial clock.”). But see ......
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United States v. Shellef, Docket No. 11–876–cr.
...from undue delay in his or her trial” and to “benefit society by ensuring a quick resolution of criminal trials.” United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995). The Act sets forth a different set of considerations for granting continuances when a defendant is first tried. Some exclus......
-
United States v. Sachakov, No. 11–CR–120.
...that a continuance was granted in order to further the ends of justice to create excludable time is not permitted. United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995). While the Supreme Court has noted that the Speedy Trial Act is ambiguous on precisely when those findings must be “se[t] f......
-
U.S. v. Gaskin, No. 02-1070.
...v. Hillegas, 578 F.2d 453, 456 (2d Cir.1978); accord United States v. Breen, 243 F.3d 591, 594 (2d Cir.2001); United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995) (per curiam). Toward this goal, Congress enacted the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., which provides for dism......
-
U.S. v. Shellef, No. 03–CR–0723 (JFB)(ETB).
...3161(h)(8)(A), it is axiomatic that retrospective exclusions under Section 3161(h)(8)(A) are not permissible. See United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995) (“[T]he district court's nunc pro tunc ‘ends of justice’ finding was ineffective to toll the speedy trial clock.”). But see ......
-
United States v. Shellef, Docket No. 11–876–cr.
...from undue delay in his or her trial” and to “benefit society by ensuring a quick resolution of criminal trials.” United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995). The Act sets forth a different set of considerations for granting continuances when a defendant is first tried. Some exclus......